A study on non-compensable regulatory measures in international investment law: host states’ right to regulate in indirect expropriation cases
|關鍵字:||國際投資法;投資人待遇;間接徵收;合理規制措施;International Investment Law;indirect expropriation;right to regulate;non-compensable regulatory activity|
Since the end of cold war, the numbers of investment treaties and investment arbitrations have increased significantly. Nowadays there are nearly 3000 bilateral investment treaties along with several regional investment treaties. These treaties are designed to attract foreign investors by providing favorable investment environment. Through the conclusion of investment treaties, the host states agree to give up part of their sovereign, to guarantee the regulatory power will be exercised in accordance with the treaty. However, the investment treaties do not eliminate dispute between investors and host states. When disputes raise, how much regulatory power the host states remaining becomes the most important issue. In the public international law, the sovereign states have their inherent right to regulate domestic affairs including economic activities. As long as the states do not abuse the right to regulate, there would be no obligation to compensate incurred, even the state activities harm the assets of foreign investors. Although joining investment treaties limit the right to regulate, the treaties do not intend to eliminate all the non-compensable regulatory spaces for the host state. The key issue then becomes how much can the state regulates before infringing the treaties obligation. This issue is especially important when the investors raise indirect expropriation claims against the host state. This article tries to depict how this issue been considered in indirect expropriation cases under international investment law and further examine the approach taken by the current international investment law. By examining the developments of investment treaties and investment disputes on indirect expropriation, this article addresses that: 1). Traditional treaties provide very few clues on how to distinguish indirect expropriation and reasonable exercise of regulatory power that does not incur compensation. Though recent treaties have made some progress by providing factors to be considered the content of these factors and the order to examine them still rely on the interpretation of arbitral tribunal. 2). Nevertheless, the arbitral tribunals’ interpretation is not always consistent. Although most of the tribunals admit that the states have certain regulatory spaces, the tribunals’ approaches seem not very coherent on how to distinguish indirect expropriation and non-compensable regulatory activities. At the same time, the arbitral awards often do not balance the interest of both investors and host states. After examining the current situation of indirect expropriation cases and identifying the aforementioned flaws, in the last part of this article, a proposal is made to fix the flaws: 1). Establish a coherent examination structure in expropriation cases; 2). Use proportionality as a tool to balance the interests of investor and the host states.
|Appears in Collections:||Thesis|
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